DePaul Law Review
Volume 4
Issue 2 Spring-Summer 1955
Article 21
Labor Law - Organizational Picketing Defined and
Approved
DePaul College of Law
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Recommended Citation
DePaul College of Law, Labor Law - Organizational Picketing Defined and Approved, 4 DePaul L. Rev. 334 (1955)
Available at: http://via.library.depaul.edu/law-review/vol4/iss2/21
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LABOR LAW-ORGANIZATIONAL PICKETING DEFINED
AND APPROVED
Plaintiff was the proprietor of a retail liquor store and employed three sales
clerks. When the clerks declined to join the Wine and Liquor Store Employees
Union, the union began to picket the plaintiff's store. After two years of peaceful picketing, the employer sued to enjoin further picketing. The decision of the
New York Supreme Court, Appellate Division, allowing the injunction was
reversed by the Court of Appeals of New York, which held that peaceful organizational picketing may continue indefinitely. Sidney J. Wood v. John M.
O'Grady, Wine and Liquor Store Employees Union, Local 122, A.F. of L., 307
N.Y. 532, 122 N.E. 2d 386 (1954).
This court has established the New York policy on one of the most controversial issues in the field of labor relations. Picketing is a potent weapon in a
union's arsenal, while the equitable injunction against picketing is the devastating retaliatory move on the part of the employer. The states are thus caught
between the clash of these two mighty forces, and they have traveled a rocky
road in attempting to strike a balance.
By adopting in 1935 an anti-injunction statute' similar to the NorrisLaGuardia Act,' New York followed the lead of the federal government in discouraging the use of injunctions in labor disputes except where there is fraud
or violence. For picketing to be part of a labor dispute, the object of the picketing must be lawful. The word "lawful" is what causes much of the controversy.
Some states have anti-injunction acts, but they also have enunciated a public
policy against picketing for certain objectives which no longer are lawful.
When these objectives are sought by means of picketing, the state declares that
there is no labor dispute. Thus the anti-injunction act does not protect that type
of peaceful picketing. New York, as the Wood case reveals, has no policy which
limits the area of labor disputes.
Thornhill v. Alabama' sanctioned the use of peaceful picketing in labor disputes. An Alabama statute establishing a general restraint against peaceful
picketing was held violative of the workers' right of free speech. A.F. of L. v.
Swing4 extended the use of peaceful picketing to labor disputes not in the direct
employer-employee relationship. This case, therefore, allowed stranger picketing.
Although peaceful picketing had been held to be a right derived from the
constitutional protection of free speech, some states desired to test how far free
speech would extend. Washington passed a statute guaranteeing to all employees freedom from coercion in the determination of a bargaining agent.
1 Civil Practice Act, Art. 51 § 876-a, L. 1935; Consol. Laws, c. 477 (1935).
Federal Anti-Injunction Act, 47 Stat. 70 (1932); 29 U.S.C.A. § 101 et seq. (1932).
310 U.S. 88 (1940).
4 312 U.S. 321 (1941).
CASE NOTES
Building Service Employees International Union v. Gazzam5 soon provided the
answer. In this case the union demanded that the employer recognize the union
as bargaining agent even though the employees had voted not to join the union.
An injunction against stranger picketing was upheld by the United States
Supreme Court. The court declared:
Since picketing is more than speech and establishes a locus in quo that has far more
potential for inducing action or non-action than the message the pickets convey, this
Court has not hesitated to uphold a state's restraint of acts and conduct which are6 an
abuse of the right to picket rather than a means of peaceful and truthful publicity.
Because of Washington's public policy, the picketing here was for an unlawful
object. Thus evolved the rule that peaceful picketing for an unlawful object is
enjoinable. Similarly, in United Ass'n of Journeymen Plumbersand Steamfitters v.
Graham,7 peaceful picketing for an object violative of a provision of the Virginia "right-to-work" statute could be properly restrained.
Many authorities on labor law maintain that stranger picketing should be
divided into two groups. The first type is recognition picketing, in which the
picketing union demands that the employer recognize the union as bargaining
agent regardless of the employees' thoughts on the matter. The other type is
termed organizational picketing because its purpose is to publicize the employees' non-union status, thereby inducing the employees to become members
of the union.
The significant case of Goodwins v. Hagedorns presented New York with an
opportunity to declare its policy on recognition picketing. A union which was
picketing for recognition despite the fact that a certification proceeding between this union and a rival union was pending before the National Labor Relations Board was enjoined from further picketing on the ground that the purpose
of the picketing was unlawful. In deciding this case, the court found it necessary
to venture into one of the nebulous areas of labor law that has been discussed
frequently in cases involving picketing. The union argued that since the TaftHartley amendments to the National Labor Relations Act specifically recited
unfair labor practices by unions,' and since Taft-Hartley was silent on stranger
picketing, the injunction should be denied. The court held that the silence in
the federal law left the states free to act on stranger picketing. However, one
dissenting judge reasoned that the silence meant that Congress indicated that
stranger picketing was to be allowed, while another dissenter held that Congress had so pre-empted the field of unfair labor practices that states should not
act on questions of stranger picketing. Thus emerged three diverse views as to
5 339 U.S. 532 (1950).
6 Ibid., at 537.
7
345 U.S. 192 (1953).
8 303 N.Y. 300, 101 N.E. 2d 697 (1951).
0National Labor Relations Act, as amended by the Labor Management Relations Act
(Taft-Hartley), 61 Star. 140, 141, 142 (1947); 29 U.S.C.A. § 158 (b) (1947).
DE PAUL LAW REVIEW
how the Taft-Hartley Act has affected state jurisdiction over peaceful picketing.
Now that peaceful recognition picketing could be restrained, the stage was
set for a challenge to the validity of peaceful organizational picketing, which
challenge is the crux of the instant case. The Special Term of the Supreme Court
dismissed the plaintiff's petition to enjoin the organizational picketing, ruling
that the purpose of the picketing was lawful. The Appellate Division, on the
other hand, decided that the length of time of the picketing (two years) made
the purpose illegal. Citing the Goodwins decision on recognition picketing, it
allowed the injunction.
The Court of Appeals, in reversing the Appellate Division, considered four
aspects of the organizational picketing problem. First, the labor policy of New
York was reviewed. An impressive list of cases cited by the court revealed that
New York has been consistently reluctant to enjoin peaceful picketing. This
policy obviously was in contrast to the Washington and Virginia public policy
of curbing peaceful picketing. Then the court cited the Civil Practice Act, 0
which declared that injunctions may not be used in labor disputes unless unlawful acts have been threatened or committed and substantial and irreparable injury to the complainant's property has occurred. The inconveniences to the
plaintiff, the court found, were merely those usually accompanying peaceful
picketing in a labor dispute. A labor dispute was involved here, the court decided, since the picketing was reasonably connected to wages, hours of employment, and the right of collective bargaining. Next, the court ruled that the
Goodwins case on recognition picketing was not a precedent to the instant case,
which involved organizational picketing. Third, a search of New York cases
failed to establish that organizational picketing was unlawful. Thus Building
Service Employees v. Gazzam could not be applied here because of the lack, under
New York policy, of an unlawful object. Finally, the court held that the length
of time of the picketing was immaterial. In the words of the court:
The test of illegality, as we see it, is not whether any particular picketing has
"gone on long enough," but rather whether such picketing is being lawfully conducted in the furtherance of union interests in a statutory labor dispute. If picketing is a
legally protected right one day, it continues as such into the next."
It is interesting to note here the reaction of the Special Term to the reversal
of its decision in the Wood case by the Appellate Division. Two weeks after the
Appellate Division ruled, the Special Term declined, in CortlandtCo. Dept. Store
v. Cohen," to restrain peaceful organizational picketing which had continued
for only two weeks. The Special Term distinguished the Appellate Division's
ruling in the Wood case on the ground that the length of time of the picketing
10Art. 51, § 876-a, L. 1935; Consol. Laws, c. 477 (1935).
"307
N.Y. 532, 540, 122 N.E. 2d 386, 390 (1954).
'2205 Misc. 165, 127 N.Y.S. 2d 261 (S. Ct., 1953).
CASE NOTES •
was the factor leading to an injunction. The Special Term obviously did not
consider the Appellate Division to have banned organizational picketing per se.
The principal case contained a vigorous dissent. In emphasizing the dilemma
of the employer, the dissenting judges contended that the plaintiff must either
go out of business as a result of the picketing or accede to the union's demand
for recognition despite the wishes of the employees. This latter course would be
a violation of both the New York State Constitution"s and the New York State
labor law which prohibits an employer from requiring union membership as a
condition of employment except where a union shop agreement has been
reached.1 4 Secondly, the dissenters reasoned that organizational picketing
should not be allowed today. They admitted that it was a potent weapon in the
days of the lockout and the "yellow dog" contract. But since the employer's use
of his two clubs has been curtailed by modem legislation, likewise courts today
should outlaw organizational picketing. Lastly, the dissent stated that there was
no organizational picketing here since the picketing was directed at the store,
which the employer, not the employees, owned. 5 They alleged that even if the
picketing could be construed as organizational, any distinction between recognition and organizational picketing was theoretical because the union has the
same desire (exclusive bargaining status) in both situations, regardless of
whether the picketing is directed at the employer or the employees.
Until the instant case was decided, the trend of cases had been with the dissenting opinion. Wisconsin, in Wisconsin Employment Relations Board v. Retail
Clerks,'" outlawed all stranger picketing, refusing to recognize a distinction between organizational and recognition picketing. Michigan also enjoined peaceful
organizational picketing in an interesting decision. 7 In rejectingthe union's protests against a violation of free speech, the court stated that picketing involved
other elements besides communication, namely, economic pressure and the
signalling of fellow union members as to trouble with a particular employer.
The familiar argument over conflicting federal-state jurisdiction was also
raised. Although the court admitted that some states, notably Minnesota, be"aN.Y. Const. Art. I, § 17.
"4New York State Labor Relations Act, §§ 703, 704, L. 1937; Consol. Laws, c. 443
(1937).
15Conceding that the pickets were stationed at the plaintiff's store, one might ask where
else the union could place pickets in order to induce the non-union employees to join the union.
Certainly, the union could not picket the employees' residences. Also, the majority consid-
ered the placards carried by the pickets to be a truthful representation of the dispute. The
signs read: "The employees of this store are non-union. Please do not patronize this non-
union store. We are members of the American Federation of Labor, Local 122." Thus the
signs contained no charge that the employer hired non-union workers only or even that he
was the cause of the non-union status of the employees.
16264 Wis. 189, 58 N.W 2d 655 (1953).
17 Hall Steel Co. v. Teamsters, 53 A.L.C. 132 (1952).
DE PAUL LAW REVIEW
lieve that federal jurisdiction is exclusive in picketing situations, it commented
that considerable legislative action and judicial interpretation must occur before
Michigan will cede exclusive jurisdiction in picketing disputes to the federal
government. The federal-state conflict was labeled, "a shadowy field of uncertainty." Only when there is "direct and positive conflict" will Michigan yield
its jurisdiction. This latter statement is somewhat surprising since the states
can enact so-called "right-to-work" legislation only when the state laws against
union-security clauses in bargaining agreements are more restrictive than the
Taft-Hartley Act.' 8
Illinois has not yet been confronted with a case squarely presenting the issue
of whether peaceful organizational picketing shall be restrained. Like many
other states, Illinois has an anti-injunction act,19 but, as has been observed, state
public policy may remove the protection of an anti-injunction statute. In
Bitzer Motor Co. v. Teamsters, Local 604,20 Illinois adhered to the nation-wide
trend and prohibited peaceful recognition picketing. Illinois, therefore, has
three avenues to pursue in the controversy over peaceful organizational picketing: 1) such picketing may be held to be for an unlawful object under Illinois
policy, and thus will be enjoined, 2) Wisconsin's refusal to distinguish between
recognition and organizational picketing can be followed, or 3) the Wood v.
O'Grady decision allowing such picketing may be preferred.
Pennsylvania rendered a decision between the time that the New York Appellate Division and the Court of Appeals ruled in the Wood case.2 Organizational picketing that had continued for five years was restrained. The Appellate
Division's decision in the instant case was specifically referred to in this case.
The criterion as to the length of time for organizational picketing was established as follows: for a business involving a small number of workers, two or
three weeks of picketing is sufficient; and where more than one hundred workers are involved, two or three months should be enough time for picketing. It is
questionable as to whether this case will stand, in lieu of the subsequent developments in the instant case.
Ultimately, the question of peaceful organizational picketing involves basic
policy considerations. On the part of the union, organizing reluctant workers
adds numerical and financial strength to the union. It aids the benefits already
acquired by the union workers in the form of high wages and fringe benefits by
attempting to reduce the number of employers with non-union workers, who
generally do not have such benefits, giving those employers a competitive
18 National Labor Relations Act, as amended by the Labor Management Relations Act,
61 Stat. 151 (1947); 29 U.S.C.A. § 164 (b) (1947).
19Ill. Rev. Stat., c. 48 § 2a (1925).
20349 I11.App. 283, 110 N.E. 2d 674 (1953).
It Anchorage v. Waiters and Waitresses Union, 54 A.L.C. 759 (1954).
CASE NOTES
339
advantage over employers hiring union members. But most important is the
fact that picketing is the union's greatest weapon. Any curbing of picketing
seriously damages its bargaining power. On behalf of the employer, there is the
disturbing dilemma discussed by the dissent in the Tfood case. Of course, the
employer does not want to go out of business. On the other hand, it would defeat the purpose of labor legislation if a union could pressure an employer into
committing unfair labor practices. Whether the decision in Wood v. O'Grady,
which contravenes the previous trend of state cases on peaceful organizational
picketing, will be followed by other states because of the pivotal importance of
New York in labor relations, will be interesting to observe.